With an estimated $7 billion in sales in 2016 and potentially exponential growth due to recent ballot initiatives on recreational use, the legal marijuana industry has a lot of businesses seeing green. But as is so often the case in this country, there’s a darker side to this story and it splinters on the lines of race. For decades, the war on drugs has disproportionately targeted black and brown users for arrest and incarceration, and legalization efforts have until recently not addressed what happens to people who have been put in prison for possessing a substance that voters have since opted to make legal.

The American Civil Liberties Union found in a 2013 report that, between 2001 and 2010, 88 percent of marijuana arrests were for possession, as opposed to intent to distribute. These arrests accounted for 46 percent of all drug arrests in the United States at that time. And though studies suggest that African-Americans and whites use marijuana at similar rates, African-Americans were nearly four times more likely to be arrested for a marijuana crime.

There is also the question of how former convicts with marijuana-related felonies on their record will be treated. Colorado, which legalized marijuana for recreational usage in the 2012 elections, doesn’t allow anyone with a felony marijuana conviction in the last decade to apply for a retail marijuana business license—this in a state where African-Americans are more than three times more likely and Latinos 1.5 times more likely to be arrested on marijuana charges than whites. So even though arrests are down 81 percent since 2012, there’s a whole host of black and brown people in the state who will be excluded from participation in the legalized industry for almost another decade.

Activists have, however, learned some lessons from the Colorado experience. “The devastation of communities of color by the war on drugs was always a top priority for people working on this issue,” said Shaleen Title, a marijuana activist on the board of Marijuana Majority and the founder of THC Staffing Group. “But what we started seeing in 2012, and particularly as there started to be a big business incentive for legalization, was less focus on the social justice issues.” This is, in part, because some newer proponents of legalization either didn’t focus on it or worried that introducing the issue of racial justice would impede the effort to legalize.

“It’s very well documented that it’s black and brown people who have borne the brunt of prohibition,” she added, noting that only one of Colorado’s 500 marijuana dispensaries is owned by an African-American woman. “When we pass these laws, we have to address that. We can’t just start from scratch and expect for that to be fair.”

Title was part of a coalition of activists in Massachusetts that made sure that the state’s ballot initiative in 2016 allowed people with marijuana-only convictions to be licensed marijuana business holders. It also forced the issue of broader amnesty for marijuana convictions.

“The war on drugs has been a racially discriminatory disaster and legalization should be an opportunity to try to correct that and make amends for past wrongs,” explained Tom Angell, the chairman of Marijuana Majority, which is devoted to reforming the country’s marijuana laws. “But there’s still a lingering, outdated, and cruel attitude that people who broke the law should be punished as much as possible, even if it prevents them from fully participating in society.”

“With measures such as the provisions [in Massachusetts and California], we have a chance to set an example in the rest of society and to make amends,” he added.

California’s 2016 ballot initiative to legalize the production, distribution, and use of marijuana for recreational purposes set up a system providing for the reclassification and/or expungement of marijuana-related offenses. For those still serving sentences, there will also be opportunities for resentencing. It’s likely to have an impact on a significant number of Californians: The ACLU says that nearly 20,000 people were arrested for marijuana possession even after the state decriminalized possession in 2011.

In Oregon, which legalized recreational marijuana by ballot initiative in 2014, the law did not have an explicit expungement provision—but it did allow people with marijuana-related crimes to qualify for licensure to own a legal marijuana business. Then, in 2015, the legislature passed a law allowing anyone with a marijuana conviction to apply for expungement if the act for which they were convicted—like possession, growing marijuana, or growing in excess of what was deemed allowable for medical use—is no longer considered a crime.

There are fees associated with expungement—as there are in most states—and the process requires legal assistance, which is why the Minority Cannabis Business Association, in partnership with the cannabis company Marley Natural, held its first-ever expungement clinic in Portland, which helped 30 clients.

Jeannette Ward, the vice chair of the MCBA, noted that, because of Oregon’s law allowing people with convictions for marijuana-related offenses to participate in the legal system, the clinic wasn’t about helping potential marijuana business owners. “We do it because the war on drugs targeted people of color,” she said, “and we want to take the profits from companies that are making money and try to rebalance the scales of the detrimental wars on drugs.”

“The resulting economic impact especially in communities of color is wide and devastating,” she explained. “Now that cannabis is legal and people are profiting, we have to ask: How do we use those profits to help repair those communities that were targeted and damaged by the illegalization of cannabis?”

The impacts of a marijuana arrest, let alone a conviction, can be profound. “Arrest is just one moment,” explained Jenny Roberts, a professor and the co-director of the Criminal Justice Clinic at the American University Washington College of Law. “And then that moment is determinant of so many things down the line. One moment of racially disparate policing becomes a moment that follows people throughout their life.”

She noted that criminal records can—legally or not—affect arrestees’ employment prospects, their ability to find housing, and even their ability to travel outside the country—even if they aren’t convicted of any crime. “We treat too many acts in this country as things that need to be processed through the criminal justice system,” she said.

“Everyone knows that you can go around and arrest many, many people for marijuana, but we all know who actually gets arrested for it,” she added. “Policies that end up in racially disparate arrests are unfair and have much broader impacts than just the arrests.”


There is one enormous wrinkle to all the progress that has been made on the marijuana legalization front: Alabama Senator Jeff Sessions, President-elect Donald Trump’s nominee to be attorney general, is a long-time opponent of marijuana legalization. As recently as April, he said in a congressional hearing that “we need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized, it ought not to be minimized, that it’s in fact a very real danger.”

In January, he’ll be precisely that grown-up—one with the ability to sue the states that have legalized marijuana for recreational use, a prospect on which the Obama administration passed in 2013. And while he can’t sue to prevent states from offering expungements to offenders, he can re-energize the Drug Enforcement Agency’s enforcement efforts in states that have legalized pot, prosecuting people under federal law even if states decline to participate.

But the Sessions Justice Department may also decide to target the nation’s licensed growers and dispensaries, since their regulation and documentation would make them low-hanging fruit. This means the well-documented racial disparities in the legal marijuana industry might turn the war of drugs on its head: For the first time, federal authorities may well end up targeting reasonably well-off white entrepreneurs and business people for marijuana charges.